Parrakkamannil Varghese v. Domingo Uribe, Jr., et al

Filing

Filed order and amended opinion (ALEX KOZINSKI, M. MARGARET MCKEOWN and MILAN D. SMITH, JR.). Amending Disposition Opinion AFFIRMED; The opinion filed on June 26, 2013, and appearing at 720 F.3d 1100 (9th Cir. 2013), is amended as follows: (SEE ORDER FOR FULL TEXT) An amended opinion will be filed concurrently with this order. With the amended opinion, the panel has unanimously voted to deny the petitions for panel rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petitions for panel rehearing and rehearing en banc are DENIED. No further petitions shall be entertained. [8791991]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PARRAKKAMANNIL KOSHY BILJI
VARGHESE,
Petitioner-Appellant,

No. 11-55686

v.

D.C. No.
3:09-cv-02801WQH-WVG

DOMINGO URIBE, JR., Warden;
EDMUND G. BROWN, JR.,
Respondents-Appellees.

ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
January 8, 2013—Pasadena, California
Filed June 26, 2013
Amended September 23, 2013
Before: Alex Kozinski, Chief Judge, M. Margaret
McKeown, and Milan D. Smith, Jr., Circuit Judges.
Order;
Opinion by Judge Milan D. Smith, Jr.

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VARGHESE V. URIBE
SUMMARY*

Habeas Corpus
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a murder
conviction.
Petitioner sought to test the remainder of a blood sample
after the prosecution had conducted an initial DNA test, with
no obligation to reveal the test results to the prosecution. The
panel held that the state trial court’s compromise – to have
either a neutral laboratory or the defense expert test the blood,
but only if the results were made available to both parties –
was neither contrary to nor an unreasonable application of
clearly established federal law.

COUNSEL
Todd W. Burns (argued), Burns & Cohan, San Diego,
California, for Petitioner-Appellant.
Lynne G. McGinnis (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Julie L.
Garland, Senior Assistant Attorney General; Kevin Vienna
and Gil Gonzalez, Supervising Deputy Attorneys General,
Office of the Attorney General, San Diego, California, for
Respondents-Appellees.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ORDER
The opinion filed on June 26, 2013, and appearing at
720 F.3d 1100 (9th Cir. 2013), is amended as follows:
1. Slip op. at 10, 720 F.3d at 1106, replace
<Where, as here, a state court has no
specific legal rule to apply, the state
court’s decision “is not an unreasonable
application of clearly established Federal
law.”> with <“[I]t is not an unreasonable
application of clearly established Federal
law for a state court to decline to apply a
specific legal rule that has not been
squarely established” by the Supreme
Court.>.
2. Slip op. at 11, 720 F.3d at 1107, following
<“Government violates the right to
effective assistance when it interferes in
certain ways with the ability of counsel to
make independent decisions about how to
conduct the defense.” Id. at 686.> add
<“[E]ven a general standard may be
applied in an unreasonable manner,”
Panetti v. Quarterman, 551 U.S. 930, 953
(2007), but the California Court of Appeal
did not unreasonably apply Strickland and
its progeny in affirming the trial court’s
refusal to allow confidential defense
testing of the blood sample.>.
3. Slip op. at 11, 720 F.3d at 1107, delete
<articulate more specific principles than

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those invoked by Varghese—which, when
viewed in their factual circumstances,>.
4. Slip op. at 11 n.2, 720 F.3d at 1107 n.2,
replace <it is not germane to our AEDPA
analysis.> with <it is not controlling here.
McCormick is “relevant persuasive
authority,” Himes, 336 F.3d at 853, but it
adds little to Varghese’s argument that the
state court’s decision was objectively
unreasonable.>.
5. Slip op. at 19, 720 F.3d at 1111, delete
<The rule established in Simmons is
inapposite because>.

An amended opinion will be filed concurrently with this
order.
With the amended opinion, the panel has unanimously
voted to deny the petitions for panel rehearing and rehearing
en banc. The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petitions for panel rehearing and rehearing en banc
are DENIED.
No further petitions shall be entertained.

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OPINION
M. SMITH, Circuit Judge:
Parakkamannil Koshy Bilji Varghese, a California state
prisoner, appeals the district court’s denial of his petition for
a writ of habeas corpus under 28 U.S.C. § 2254. A jury
convicted Varghese of stabbing and murdering his ex-wife’s
lover. A key piece of evidence in the case was a small blood
stain found at the crime scene. The prosecution’s initial test
of the blood stain showed that it matched Varghese’s DNA.
Varghese requested the remaining blood sample to conduct a
DNA test using his own expert, but without having to
disclose the test results to the prosecution, even though a
second test would likely consume the remaining blood. The
trial court denied Varghese’s request and instead offered
Varghese the choice of having either an independent
laboratory or his own expert test the blood, but only if the test
results were made available to both parties. Varghese’s
counsel refused the trial court’s proposal. Varghese appealed,
arguing, among other things, that the trial court’s ruling
violated his right to counsel. In a reasoned decision, the
California Court of Appeal affirmed the trial court.
On federal habeas review, Varghese claims that the trial
court’s ruling regarding the blood sample violated his
constitutional rights to counsel and due process. Because, at
the time the California Court of Appeal rendered its decision,
there was no Supreme Court decision that squarely addressed
Varghese’s claims, or announced a principle that clearly
extended to the circumstances of this case, we hold that the
state court’s decision was not “contrary to” or an
“unreasonable application” of “clearly established Federal
law” under 28 U.S.C. § 2254(d)(1). Accordingly, we affirm.

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FACTS AND PRIOR PROCEEDING
A. Factual Background1

In April 2003, Varghese and his wife, Vilia Varghese,
separated. Varghese was unhappy with the separation and did
not want a divorce. During this period, Vilia began a
relationship with Haval Ravin, a physician who ran a fertility
clinic.
On November 12, 2004, Ravin was found dead at his
home, with multiple stab wounds to his body, including to his
neck, abdomen, back, bicep, and testicles. Police officers
found several inculpatory pieces of evidence at the crime
scene, including a shoe that belonged to Varghese and a
matching bloody shoeprint. A critical piece of evidence for
the prosecution was a blood spot (Item 19) found near a light
switch at Ravin’s home. The prosecution’s initial DNA test
and analysis of the blood spot, conducted by criminalist
David Cornacchia of the San Diego Police Department,
Forensic Science Section, indicated that Varghese was almost
certainly the source of the DNA profile. The probability of
selecting an individual, at random, who matched the DNA
profile from this blood sample was in the quintillions.
By pretrial motion, Varghese requested an order
permitting his expert, Dr. Edward Blake, to test the blood

1

The factual background is principally drawn from the California Court
of Appeal’s decision in People v. Varghese, 76 Cal. Rptr. 3d 449 (Ct. App.
2008). In a habeas proceeding, the findings of fact made by the state court
are “presumed to be correct,” and the petitioner carries the burden of
rebutting that presumption by “clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).

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sample, but with no obligation to reveal the test results to the
prosecution. Varghese conceded that a second test might
consume the remaining blood. The prosecution opposed the
motion, stating that it wished to conduct further testing to
corroborate its initial results, and would be unable to do so if
Varghese’s motion were granted. The prosecution suggested
that either a neutral laboratory agreeable to both parties or
Varghese’s expert test the remaining blood, but only if both
parties could access and introduce at trial the data and results
of that test. The trial court found that there was a high risk
that additional testing would consume the remaining blood,
and concluded that the prosecution was entitled to corroborate
its findings with regard to such an important piece of
evidence. Under the circumstances, the trial court determined
that the prosecution’s proposed compromise was reasonable,
and denied Varghese’s motion for the release of Item 19 for
confidential testing.
Varghese filed a motion for
reconsideration, which the trial court denied. During the
second motion hearing, the trial court reiterated that it would
be willing to permit a neutral laboratory or the defense expert
to test the blood, but only if the results were made available
to both parties. The defense declined the court’s offer.
In April 2006, Varghese was convicted by a jury of firstdegree murder, and use of a deadly weapon, a knife, in the
commission of the murder, in violation of California Penal
Code §§ 187(a) and 12022(b)(1). He was sentenced to a
prison term of 26 years to life. Varghese appealed the
conviction, arguing, inter alia, that the trial court erred in
conditioning the use of his own expert on his disclosure of the
test results to the prosecution, in violation of his right to
counsel under Prince v. Superior Court, 10 Cal. Rptr. 2d 855
(Ct. App. 1992). In a reasoned decision, issued on May 8,
2008, the California Court of Appeal affirmed the trial court.

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See Varghese, 76 Cal. Rptr. 3d at 454–58. The California
Supreme Court summarily denied the petition for review.
The U.S. Supreme Court subsequently denied Varghese’s
petition for a writ of certiorari. See Varghese v. California,
555 U.S. 1143 (2009).
B. Habeas Procedural History
On December 10, 2009, Varghese filed a petition for a
writ of habeas corpus in federal district court. Varghese
asserted that his Sixth Amendment right to counsel and
Fourteenth Amendment right to due process were violated
when the trial court conditioned the defense’s testing of Item
19 on its disclosure of the results of that test to the
prosecution.
A magistrate judge recommended that
Varghese’s petition be denied under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). The
magistrate judge concluded that, at the time Varghese’s claim
was decided by the state appellate court, there was no U.S.
Supreme Court authority that decided the precise issue of
“whether due process and the right to counsel are violated
when a court orders that a criminal defendant be granted
access to test a sample of prosecution evidence that will
destroy the evidence and then require[s] the result of the test
to be disclosed to the prosecution.” As such, the state court
“cannot be said to have unreasonably applied the law as to the
issue presented in the Petition.” The magistrate judge further
rejected Varghese’s argument that the principles announced
in Ake v. Oklahoma, 470 U.S. 68 (1985), Strickland v.
Washington, 466 U.S. 668 (1984), and Powell v. Alabama,
287 U.S. 45 (1932), clearly extended to the issues raised in
the petition.

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The district court substantially adopted the
recommendation of the magistrate judge and denied the
petition. Nevertheless, the district court concluded that
Varghese raised “nonfrivolous constitutional arguments” and
granted a certificate of appealability. See 28 U.S.C.
§ 2253(c); Fed. R. App. P. 22(b).
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a). A district court’s denial of a petition for a writ of
habeas corpus is reviewed de novo, Lopez v. Thompson,
202 F.3d 1110, 1116 (9th Cir. 2000) (en banc), and we may
affirm on any ground supported by the record, Holley v.
Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009).
Federal courts are authorized to grant habeas corpus relief
to persons in state custody under 28 U.S.C. § 2254, as
amended by AEDPA, Pub. L. No. 104-132, 110 Stat. 1214.
AEDPA controls this case because Varghese filed his habeas
petition in 2009, after that statute became effective. See
Lindh v. Murphy, 521 U.S. 320, 326–27 (1997). Under
AEDPA, Varghese can prevail on his habeas petition only if
he shows the state court’s decision (1) “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
Varghese relies on the “unreasonable application” clause
of section 2254(d)(1). A decision involves an “unreasonable
application” of federal law if it (i) “correctly identifies the

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governing rule but unreasonably applies it to a new set of
facts” or (ii) “fails to extend a clearly established legal
principle to a new context in a way that is unreasonable.”
Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003). The
application must be more than incorrect or erroneous; it must
be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003). “Although only Supreme Court law is binding
on the states, our Circuit precedent remains relevant
persuasive authority in determining whether a state court
decision is objectively unreasonable.” Himes, 336 F.3d at
853.
AEDPA’s “highly deferential standard,” Lindh, 521 U.S.
at 333 n.7, “stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state
proceedings,” Harrington v. Richter, 131 S. Ct. 770, 786
(2011). We are required to affirm the denial of Varghese’s
habeas petition unless the state court’s decision was “so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 131 S. Ct. at 786–87.
Varghese bears the burden of proof in this appeal, and the
state court decision must be accorded the benefit of the doubt.
Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002) (per
curiam). State court decisions are measured against the
Supreme Court’s precedent “as of the time the state court
renders its decision.” Cullen v. Pinholster, 131 S. Ct. 1388,
1399 (2011) (citation and quotes omitted). We review the
last reasoned state court decision, Musladin v. Lamarque,
555 F.3d 830, 834–35 (9th Cir. 2009), which in this case is
the California Court of Appeal’s May 2008 opinion.

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DISCUSSION
Under AEDPA, we must defer to the state court’s
decision if a Supreme Court decision fails to (i) “squarely
address the issue in the case” or (ii) “establish a legal
principle that clearly extends to a new context to the extent
required by the Supreme Court.” Moses v. Payne, 555 F.3d
742, 754 (9th Cir. 2009) (alterations and quotes omitted). If
a Supreme Court’s decision provides “a controlling legal
standard” that is applicable to the petitioner’s claim “without
tailoring or modification of the standard,” then the next
inquiry is to decide “whether the application of that standard
was objectively unreasonable, even if the facts of the case at
issue are not identical to the Supreme Court precedent,”
Moses, 555 F.3d at 754 (citation and quotes omitted).
“[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations.” Yarborough v. Alvarado,
541 U.S. 652, 664 (2004); accord Richter, 131 S. Ct. at 786.
Here, Varghese argues that the trial court’s ruling
regarding the testing of the blood sample violated his
constitutional rights to counsel and due process. In
challenging the California Court of Appeal’s decision under
AEDPA, Varghese must identify either a Supreme Court
decision that “squarely addresses” his claim, or a legal
principle, as established by a Supreme Court decision, that
“clearly extends” to the circumstances of this case. Moses,
555 F.3d at 754. Varghese fails to do either.

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A. Supreme Court Decision Squarely Addressing
Claim

The district court properly recognized that there is no U.S.
Supreme Court authority that squarely addresses Varghese’s
claim—namely, that a criminal defendant’s rights to counsel
and due process are violated when the state court conditions
his access to, and testing of, the prosecution’s limited
evidence on the disclosure of the test results to the
prosecution. “[I]t is not an unreasonable application of
clearly established Federal law for a state court to decline to
apply a specific legal rule that has not been squarely
established” by the Supreme Court. Knowles v. Mirzayance,
556 U.S. 111, 122 (2009) (citations and quotes omitted); see
also Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the
lack of holdings from this Court . . . it cannot be said that the
state court unreasonably applied clearly established Federal
law.” (citation and brackets omitted)).
B. Interference with Effective Assistance of Counsel
In the absence of a Supreme Court decision squarely
addressing Varghese’s claim, we next consider whether
Varghese has identified an established principle that “clearly
extends” to the circumstances of this case. Moses, 555 F.3d
at 754.
Varghese invokes a cluster of broad principles related to
the rights to counsel and due process. Under the Sixth
Amendment, the accused in a criminal proceeding is entitled
“to have the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. The Supreme Court has long recognized
that “the Sixth Amendment right to counsel exists, and is
needed, in order to protect the fundamental right to a fair

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trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984).
“Government violates the right to effective assistance when
it interferes in certain ways with the ability of counsel to
make independent decisions about how to conduct the
defense.” Id. at 686. “[E]ven a general standard may be
applied in an unreasonable manner,” Panetti v. Quarterman,
551 U.S. 930, 953 (2007), but the California Court of Appeal
did not unreasonably apply Strickland and its progeny in
affirming the trial court’s refusal to allow confidential
defense testing of the blood sample.
Varghese argues that a core aspect of the right to effective
assistance of counsel is that counsel be permitted to undertake
reasonable investigations, which includes the right to employ
experts for that purpose, free from state or judicial
interference. According to Varghese, the attorney-client
privilege and the work-product doctrine are essential
components of the attorney’s ability to provide effective
representation. See Hickman v. Taylor, 329 U.S. 495, 510–11
(1947) (“In performing his various duties . . . it is essential
that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their
counsel.”). Varghese contends that his rights to counsel and
due process were violated when the trial court conditioned his
access to the blood sample on his disclosing the test results to
the prosecution, thereby “requir[ing] that defense counsel
give up a most basic protection of the attorney-client
relationship.” As support for these principles, Varghese relies
primarily on two Supreme Court decisions, Ake v. Oklahoma,
470 U.S. 68 (1985), and United States v. Nobles, 422 U.S.

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225 (1975).2 However, Ake and Nobles do not clearly extend
to the present context, Moses, 555 F.3d at 754, such that the
state appellate court’s failure to extend those principles to this
case was not objectively unreasonable, Himes, 336 F.3d at
852; Lockyer, 538 U.S. at 75.
1. Ake v. Oklahoma
In Ake, defense counsel informed the trial court that he
planned to raise an insanity defense and asked that the court
either arrange or pay for a psychiatric examination for his
client, an indigent. 470 U.S. at 72. The court refused,
effectively precluding defense counsel from presenting any
evidence regarding defendant’s sanity at the time of the
offense. Id. The Supreme Court concluded that this rendered
the trial fundamentally unfair, and held that “when a
defendant demonstrates to the trial judge that his sanity at the
time of the offense is to be a significant factor at trial, the
State must, at a minimum, assure the defendant access to a
competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and
presentation of the defense.” Id. at 83.
Ake does not clearly extend to Varghese’s constitutional
claim. Ake held that the state must in some circumstances

2

During oral argument, Varghese’s counsel identified Ake and Nobles
as the two strongest Supreme Court cases supporting Varghese’s position.
Varghese further relies on Smith v. McCormick, 914 F.2d 1153 (9th Cir.
1990). But because McCormick, a circuit case, is not clearly established
Supreme Court precedent, it is not controlling here. McCormick is
“relevant persuasive authority,” Himes, 336 F.3d at 853, but it adds little
to Varghese’s argument that the state court’s decision was objectively
unreasonable. On appeal, Varghese does not renew his argument that
Powell v. Alabama clearly extends to this case.

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provide indigent defendants with access to a particular kind
of expert, a psychiatrist, to ensure fundamental fairness at
trial. Varghese neither asserts that he was indigent, nor
claims that he asked the state to provide a psychiatrist or any
other kind of expert to assist in the preparation of his defense.
He had, in fact, retained his own DNA expert, Dr. Blake.
Even if this expert was unable to conduct a confidential DNA
test, he could help defense counsel evaluate the methodology
used by the state’s lab, decide whether to attack it at trial, and
prepare for cross-examination of the state’s lab technician.
See United States v. Chischilly, 30 F.3d 1144, 1152–53 (9th
Cir. 1994); cf. Ake, 470 U.S. at 81. This is simply not a case,
as was Ake, where the defendant lacked “the raw materials
integral to the building of an effective defense.” Ake,
470 U.S. at 77.
Second, Ake did not concern expert testing of physical
evidence, much less testing that would consume a vanishing
quantity of such evidence. Ake thus provided the state court
with no guidance on how to balance the defendant’s interest
in conducting his own DNA test with the state’s legitimate
interest in corroborating its initial results. Even if we accept
Varghese’s argument that Ake acknowledges the importance
of expert assistance generally—as opposed to the assistance
of psychiatric experts in particular—that case simply did not
involve the tradeoffs at stake here.
Varghese contends that the state’s interest in additional
testing is weak because (1) it already had a reliable test and
(2) Varghese agreed not to challenge the state’s blood
evidence if his own testing confirmed the state’s results. But
the state, which has to prove its case beyond a reasonable
doubt, has an interest in bulletproofing its evidence that the
blood recovered from the crime scene belonged to Varghese.

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See John Devlin, Genetics and Justice: An Indigent
Defendant’s Right to DNA Expert Assistance, 1998 U. Chi.
Legal F. 395, 407 (1998) (noting the prosecutor ordered
multiple tests of the DNA evidence in the O.J. Simpson trial).
Nothing in Ake suggests that, where physical evidence is
concerned, a defendant’s interest in confidential testing
trumps the state’s interest in confirming its results.
2. United States v. Nobles
In Nobles, the defense sought to impeach the
prosecution’s key witnesses using statements a defense
investigator obtained from the witnesses. 422 U.S. at 227.
The issue before the Supreme Court was whether, under the
circumstances, a federal trial court could compel the defense
to reveal the relevant portions of the investigator’s report for
the prosecution’s use in cross-examining the investigator. Id.
The defense argued, inter alia, that the work-product doctrine
exempted the investigator’s report from disclosure at trial. Id.
at 236. The Nobles Court concluded that because the defense
had voluntarily elected to present the investigator as a
witness, the defense had waived the privilege with respect to
matters covered in the investigator’s testimony. Id. at
239–40.
Invoking the principles in Nobles, Varghese argues that
by conditioning the defense’s access to the blood sample on
disclosure of the test results, the trial court compelled
surrender of his attorney’s privileges and therefore violated
his right to effective assistance of counsel. We note that the
Supreme Court developed the work product doctrine to shield
counsel’s private memoranda from the liberal discovery
permitted by the Federal Rules of Civil Procedure. The Court
grounded the doctrine not in the Constitution, but on the

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assumption that the drafters of the Federal Rules did not seek
to alter “the historical and the necessary way in which
lawyers act within the framework of our system of
jurisprudence to promote justice and to protect their clients’
interests.” Hickman, 329 U.S. at 511; see also Jeff A.
Anderson et al., The Work Product Doctrine, 68 Cornell L.
Rev. 760, 765–79 (1983). The doctrine governs discovery
and disclosure in federal cases, both civil and criminal, and
it cannot support a state prisoner’s habeas claim any more
than a violation of the Federal Rules of Evidence could.
But the Nobles Court also considered, in a footnote,
whether the forced disclosure of the investigator’s report
violated the Sixth Amendment right to counsel. As Varghese
does here, the defendant in Nobles argued that such a
disclosure was unconstitutional because it would
“compromise counsel’s ability to investigate and prepare the
defense case thoroughly.” Nobles, 422 U.S. at 240 n.15. The
Court rejected this claim, invoking notions of waiver. Once
the defendant made a “voluntary election” to present the
investigator’s report at trial, he could no longer hide behind
the attorney-client relationship to shield this information from
the prosecution. Id.
This constitutional holding does not clearly extend to the
circumstances of Varghese’s case. Nobles decided only that
the Sixth Amendment does not prohibit the disclosure of a
defense investigator’s report, containing his distillation of
witness interviews, when the defendant calls the investigator
to testify at trial. The case does not address whether a
defendant may withhold expert materials of a wholly different
kind—scientific test results—if the defendant decides not to
use those results at trial. A reasonable jurist might well
conclude that disclosure of an expert’s test results is less of an

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intrusion on the attorney-client relationship than disclosure of
the expert’s subjective impressions or mental processes
would be.
This is especially true in Varghese’s case, where the state
trial court
did not order the reports or observations of the
expert be turned over to the prosecution. It
ordered only the result of the test to be
revealed. In doing so, the court granted the
defendant the right to test the results and keep
all of its work product and reports
confidential. At the same time it foreclosed
the possibility that a test result matching that
of the prosecution’s expert would be
destroyed and the People left without the
ability to corroborate its findings if the
defense were to challenge at trial the
prosecution expert.
Varghese, 76 Cal. Rptr. 3d at 458. A laboratory’s “bottom
line result of the test,” id. at 457, which would presumably
include DNA quantification data, is not substantially
equivalent to the expert’s “mental processes,” Nobles,
422 U.S. at 238, as it may be reflected in the expert’s reports,
observations, impressions, or communications made in the
assistance of the defense.
In response, Varghese argues that the California Court of
Appeal’s notion that the trial court ordered that only the test
results be disclosed is “factually wrong.” Under AEDPA, the
state court’s factual determinations, including the appellate
court’s interpretation of what the trial court actually ordered,

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are “presumed to be correct,” unless rebutted by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); see also
Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002).
Varghese does not satisfy this burden because he fails to
provide clear and convincing evidence from the record
available to the appellate court that the trial court ordered
anything beyond the test results. Varghese’s citation to the
prosecution’s request that both parties be allowed “to access
and introduce in full at trial all of the data and testing
conducted on those items” does not suggest that the
prosecution requested full access to the expert’s reports,
observations, or to any confidential materials involving the
expert. As the Supreme Court noted with respect to the
defense in Nobles, Varghese “fails to recognize the limited
and conditional nature of the court’s order.” Nobles, 422 U.S.
at 240 n.15. The trial court in this case did not authorize a
“general fishing expedition into the defense files or indeed
even into the defense [expert’s] report.” Id. at 240 (citation
and quotes omitted). Indeed, the trial court rejected the
defense’s argument that if it adopted the prosecution’s
proposed compromise, it “somehow opens the door to allow
the People to go after anything above and beyond the test
results with Dr. Blake, to invade that attorney-client expert
situation.” The trial court interpreted the prosecution’s
proposed compromise as being confined to its ability to
“retest” and “verify and validate” its first test. The defense
averred that it wanted the remainder of the blood sample,
without “agree[ing] that the People would have access to the
results of Mr. Blake’s analysis.” (emphasis added).
Ultimately, the trial court required Varghese to disclose the
test results if he opted to use his own expert, and nothing
more. See Tr. Mot. Proceedings (July 1, 2005), at 62–63
(“We’re talking about verification of the results of the initial
examination.”); id. at 65–66 (“I’m willing to issue an order

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allowing Dr. Blake to test [the blood sample] as long as the
results are available to everybody.”).3
In sum, the trial court sanctioned a compromise that was
confined to the purpose of corroborating the results of the
first DNA test, and was a response to the limited blood
sample available to both sides. This was an exercise of
discretion that was not objectively unreasonable under the
circumstances, and is consistent with the purpose animating
the right to effective assistance of counsel, which is “to
ensure a fair trial.” Strickland, 466 U.S. at 686. Although
reasonable jurists may disagree as to whether this was an
abuse of the trial court’s discretion, the standard under
AEDPA requires us to defer to the appellate court’s
determination that it was not in the absence of contrary
Supreme Court authority.
3
Varghese further suggests that the appellate court’s decision was
unreasonable because the defense offered a stipulation during his motion
hearing that obviated any need for the prosecution to conduct a second test
of the blood sample. Specifically, Varghese argues that the defense stated
that if he were allowed to perform confidential testing using his own
expert, Dr. Blake, then depending on the test results, he would either (i)
call Dr. Blake to testify and his test results would be put into evidence, or
(ii) “the defense would not call an expert and then the People’s evidence
would go essentially unchallenged.” However, Varghese’s argument is not
tethered to any relevant Supreme Court case and thus is not relevant to our
AEDPA analysis. Moreover, an offer not to call a DNA expert by the
defense does not guarantee that the prosecution’s DNA test results would
go fully unchallenged because, for example, Mr. Cornacchia’s credibility
might be attacked, in which case his testimony validating the
prosecution’s first test could be undermined. A corroborating test on the
remaining blood sample would then be crucial in bolstering the results of
the prosecution’s initial DNA test. Since the blood sample was the
prosecution’s evidence, the prosecution was entitled to render a key piece
of evidence highly credible by obtaining corroborating results from a
second test.

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C. Choosing between Two Constitutional Rights
Varghese further relies on Simmons v. United States,
390 U.S. 377 (1968), for the principle that it is
unconstitutional to force a defendant to choose between two
rights. In Simmons, the criminal defendant challenged the
constitutionality of the trial court’s admission of his motionto-suppress testimony on the issue of his guilt. 390 U.S. at
389. The Court held that “when a defendant testifies in
support of a motion to suppress evidence on Fourth
Amendment grounds, his testimony may not thereafter be
admitted against him at trial on the issue of guilt unless he
makes no objection.” Id. at 394. The Court reasoned that,
given the defendant’s situation, the defendant “was obliged
either to give up what he believed, with the advice of counsel,
to be a valid Fourth Amendment claim or, in legal effect, to
waive his Fifth Amendment privilege against selfincrimination.” Id. The Court noted that “[i]n these
circumstances, we find it intolerable that one constitutional
right should have to be surrendered in order to assert
another.” Id.
Varghese’s constitutional claim does not implicate his
Fourth Amendment privilege against unreasonable searches
and seizures or his Fifth Amendment right against selfincrimination. Varghese’s claim concerns his right to access
and test limited evidence using his own expert, without
disclosing the tests results to the prosecution. Nevertheless,
abstracting the general principle that a defendant cannot be
forced to choose between two constitutional rights, id.,
Varghese argues that the state impermissibly sought to force
him to choose between the “right to have defense counsel
conduct a reasonable investigation” and the “right to maintain
the degree of privacy in defense counsel’s representation that

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is essential to effective representation.” Even were we to
accept Varghese’s contention that Simmons establishes such
a broad rule, there is no merit to his argument because he was
not foreclosed from using his own expert in testing the blood
sample or in developing his defense.
CONCLUSION
The Supreme Court has not squarely addressed
Varghese’s claim or articulated a rule that clearly extends to
the present case. Moses, 555 F.3d at 754. The California
Court of Appeal’s decision therefore cannot be said to have
unreasonably applied clearly established federal law under
AEDPA. Himes, 336 F.3d at 852. Accordingly, we defer to
the state court, and affirm the district court.
AFFIRMED.